The Texas Supreme Court on Wednesday morning was told there isn’t enough evidence that the construction of a pipe manufacturing plant in rural Matagorda County was the cause of flooding that damaged several neighboring homes during Hurricane Harvey.
Mark Little of Baker Botts represents Tenaris Bay City, which in 2013 transformed the field that had been a grass farm into a manufacturing facility. Little argued that the expert witness for the 30 plaintiff homeowners in Van Vleck and Bay City had not offered any testimony on “but-for causation” of the flooding and was “quite candid” in telling jurors about “what he did and did not do” when assessing the incident.
“He goes through what he would have to do to look at whether the outflow from the Tenaris site caused any flooding,” he said. “He said he’d have to look at topographical maps, do these hydrographic models, all of this. And then he says ‘I could have done that, but I did not.’ That’s not what he was asked to do. And then he says he didn’t do a general analysis of the area, not a specific analysis, none of that at all. All they have is this expert testimony that there was increased outflow. Whether the plaintiffs’ properties would have flooded anyway, there’s absolutely no evidence whatsoever on that.”
Little told the court his client wasn’t advocating for a bright-line rule that such expert testimony is or is not required in every flooding case.
“Our position is that we apply these well-established causation standards that we have under Texas law to flooding cases,” he said.
Justice Debra Lehrmann asked I. Nelson Heggen of Smith Parker Elliott in Houston, who represents the homeowners, to explain the significance of civil engineer Gabriel Novak’s testimony that he could have done an analysis linking the facility to the flooding of specific homes but didn’t because he wasn’t asked to do so.
“The significance of that is, that’s an engineering exercise that you would give to a student,” he said. “Tenaris never said, ‘We’re going to stop the flooding two blocks over; we’re going to prevent this’. Fluor [which constructed the facility] never did this, Tenaris never did this. No expert in this case did any kind of analysis like that.”
“It was a brilliant cross-examination. Mr. [Ty] Buthod is a master here,” Heggen said, pointing to the table where counsel for Tenaris was seated. “But it’s a masterpiece of misdirection. It has nothing to do with the real determinations in this case.”
Justices Brett Busby and Lehrman then asked Heggen to explain why that’s so.
“If you imagine a … giant sponge on the tabletop and you pour water on it,” Heggen began. “You can pour water all day and eventually it starts seeping out. If you replace that sponge with a cookie sheet and tilt it, when you pour water, it’s going to run off. And that’s what happened here: Tenaris transformed this massive sponge into a cookie sheet and they aimed it at the town. If the detention ponds had been designed correctly — and they were not — they could have held the water. But they would have had to have been maintained,” he said, telling the justices Tenaris’ expert said they had not been maintained.
According to court records, Harris County District Judge Donna Roth presided over a bifurcated trial in this case. The homeowner properties were divided into three “zones,” based on location to the plant, for purposes of trial. After granting Tenaris and Fluor a directed verdict on the claims for gross negligence, the jury determined Tenaris’ negligence was responsible for damaging homes in all three zones and that Fluor’s actions had been negligent as it related to only one zone.
Fluor entered a settlement with the plaintiffs in Zone C, and Tenaris then entered a stipulation with the plaintiffs that the total amount of damages for all three zones was $2.8 million.
Judge Roth entered final judgment in October 2021 and denied a motion for a new trial the following month. The Fourteenth Court of Appeals in Houston affirmed her judgment in an August 2023 opinion. Tenaris filed its petition for review with the Texas Supreme Court in November 2023.
Justices Rebeca Huddle and Evan Young, both former Baker Botts partners, did not participate.
Tenaris is also represented by Tynan Buthod, Laura Shoemaker McGonagill and Tom Phillips of Baker Botts.
The homeowners are also represented by J. Todd Trombley of The Trombley Law Firm and Michael J. Bins of Potts Law Firm.
The case number is 23-0808.